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Representation: Mike Onyekachi for the Claimant O.N.D. Okafor for the Defendant JUDGMENT The Claimant commenced this action by way of complaint on the 15th day of April 2014 and sought the following reliefs: 1. N1,977,900.00 being the total sum of unpaid salaries and allowances to the Claimant. 2. 25% annual interest of the aforesaid N1,977,900.00 from 25th February 2013 until judgment is delivered. The Complaint was accompanied with Statement of Facts establishing the cause of action, the Claimant’s written deposition on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The Defendant entered appearance vide a motion for extension of time filed on the 30th May 2014, and filed a Statement of Defence, list of witnesses, witness’ statement on oath, list of documents and copies of documents to be relied upon. The claimant filed a Reply to the Statement of Defence on 30th September 2014. Intervening preliminary applications were taken and resolved, and the case proceeded to hearing on the 16th day of October 2015. The parties fielded a witness each. The Claimant testified for himself as CW1, while Kufre Ekpo, the Admin. Coordinator in the office of the 1st Defendant testified as DW1. Hearing was concluded by the 17th day of November 2015, and at the close of the case for each of the parties, final written addresses were filed in accordance with the rules of this court, starting with the Defendant. The Defendant filed its written address on the 9th day of December 2015 and the Claimant’s written address was filed on the 7th day of January 2016. They adopted their respective written addresses on the 14th of January 2016. In the Defendant’s final written address, counsel raised one issue for determination: whether the Claimant has made out a case for the grant of the reliefs sought. In his argument on this issue, counsel stated that it is trite law that in an action of this nature, the Claimant fails or succeeds on the strength of his case and not on the weakness of the Defendant's case. He went further to state that from paragraphs 6 and 7 of Claimant's Statement of Facts which was admitted in paragraphs 7 and 8 of the Statement of Defence, the Claimant is entitled to a monthly salary of N30,000 (Thirty Thousand Naira) only, divided into N25,500.00 basic salary and N4500 monthly medical allowances. Also, paragraph 8 of the Statement of Facts, stated that the Defendant paid his Salary and Allowances irregularly and relied on 'EXHIBIT C3'. Counsel also stated that in the Claimant’s paragraph 4 of the reply to the Statement of Defence, he averred that the Defendant paid him partly through a funds transfer to Zenith Bank Plc. Owerri before instructing him to change over to Skye Bank Plc. Thus, the Claimant’s refusal to tender his Statement of Account at Zenith Bank Plc means that such refusal was intentional. And relying on Section 167(d) of the Evidence Act 2011, counsel submitted that it is to be presumed that if the Claimant had submitted his Zenith Bank Statement of Account in evidence, it would have been against his case. It is counsel’s further submission that the Claimant has failed to show how many months the Defendant paid him and how many is left unpaid. Again, it is counsel’s submission that Exhibit C2 is the current terms of the parties' agreement as it modified Exhibit C1. Thus, the Claimant's pay-roll was paid based on an agreed monthly payment while his non-payroll is his leave Allowance which is 10% of his Annual Basic salary paid once per year. Also, the Claimant is not entitled to Vehicle Maintenance Allowance as the Defendant did not give him a car, and the medical allowance is part of the Claimant's monthly salary. It is the argument of counsel that the Claimant’s statements during cross-examination reveal that the Claimant is oblivious of the terms of this Employment Agreement as there is nothing in both Exhibits C1 and C2 about the Claimant's private car. Again, the evidence of the Claimant using his private car to run the Defendant's business was not pleaded and therefore sprang a surprise to the Defendant especially as the Defendant did not have the opportunity to react to same. Thus, the evidence of use of private car amounts to an evidence led on facts not pleaded which on the authority of WOLUCHEM vs. GUDI (1981) 5 S.C. 291 goes to no issue. It is the case because the Employment Agreement as explained by the Defendant and accepted by the Claimant in Exhibit C4 shows that the defendant never gave the Claimant an official car. In conclusion, Counsel submitted that the Claimant has failed to proof his case and therefore he is not entitled to the grant of his claim as it a principle of law that a Party’s case succeeds based on the strength of his case and not on the weakness of the opposing side. Counsel urged the Court to dismiss this case. In the final written address of the claimant’s counsel, counsel raised issues for determination, to wit: 1. Whether Exhibits D1, D2, D3, D4, D5, D6, and D7 are admissible in law. 2. Whether the Claimant is entitled to the payments of the arrears of all his basic salary and allowances together with the interest .accruing therefrom as proved by him. With respect to issue one, it is counsel’s submission that Exhibits Dl, D2, D3, D4, D5, D6 and D7 are not admissible in law on the grounds that: i. They are photocopies of the original. ii. The Defendant did not plead the photocopies or the whereabout of the original documents. iii. The Defendant did not give the Claimant any notice to produce any of them. iv. There is nothing to show that the Claimant is in possession of the said documents and the Claimant is not in any way legally bound to produce them in evidence. v. The sole witness of the Defendant did not lay any proper foundation in his deposition as to what happened to the original documents. Counsel contended that for a document to be admissible, such document must be pleaded, must be relevant and must admissible in law. The three conditions must be complete before it is received in evidence. In AROMOLARAN vs. AGORO (2015) All FWLR (Pt.766) 574, the Supreme Court held that by the provisions of Sections 93, 94(1) and 96 of the Evidence Act, 1990, (now Sections 85, 86, 88, 89), the contents of a document may be proved by either the primary or secondary evidence. Documents must be proved by primary evidence, and secondary evidence may be given of the existence, condition or contents of a document in the following cases: a)When the original is shown or appears to be in the possession or power; i. of the person against whom the documents is sought to be proved, or ii. of any person legally bound to produce it and when, after the notice mentioned in Section 98 (now 91) of this act, such person does not produce it, iii. When the original is a public document within the meaning of Section 109 (now 102) of this Act. The secondary evidence admissible in respect of the original is a certified copy of the document, but no other kind of secondary evidence is admissible. Going by the content of the Statement of Defence particularly paragraphs 4, 11, 12, 13, 17, 19 and 22, the Defendant did not plead the photocopies of the documents sought to be admitted in evidence. The Defendant did not give the Claimant any notice to produce the original or suggest that the Claimant will rely or produce any of such documents during trial. The Claimant specifically denied all the paragraphs in his Reply to the Statement of Defence. Therefore, the said documents did not meet with the requirement of the law and admitting same will amount to springing up surprises which the law forbids. See WEMA BANK NIG PLC vs. PUNJAB NATIONAL BANK (2005) 5 NWLR (Pt. 658) 635. Counsel urged the Court to reject the above-stated documents in evidence and hold that counsel to the Defendant’s objection to the admissibility of Exhibit C7 has been abandoned because he failed to argue on it in his Final Written Address. Regarding issue two, counsel submitted that facts must be pleaded, established or admitted before a court is invited to apply law to the proven facts. In KALU vs. UZOR (2006) 6 NWLR (Pt. 981) 66 at 87 paras. C-D, it was held thus: “Without much ado, I must say that it is trite law that pleadings delimit and determines the scope and province of the legal ring for parties to prosecute and defend their respective cases. It is the foundation of the success or failure of a case. It must be mentioned also that parties are bound by their pleadings and will not be allowed to set up in court a case which was at variance with the pleading.” He also stated that from the state of pleadings of the parties, the parties are in agreement regarding the following material and crucial facts namely: a. That the Defendant employed the Claimant as Station Head, Owerri Imo State. b. That the agreed salary and allowances of the Claimant are contained in' Exhibits Cl and C2. c. That the Defendant did not pay all the agreed salary and allowances. d. That the Claimant demanded the payment of the arrears of the said salary and allowances in both Exhibits C3 and C6. e. That the Claimant voluntarily resigned from the services of the Defendant. According to Counsel, both parties also pleaded and admitted by consent that Exhibits Cl, C2, C4, C5 and C6 ought to be given full legal effect. See LONGE vs. F.B.N. PLC (2006) 3 NWLR at 281 para D. However, with respect to the Claimant’s claim for unpaid salaries and allowances, counsel submitted that the Defendant has been inconsistent and contradictory by on one hand, affirming that the Claimant is being owed and the reason why he is being owed; on the other hand stating that the Claimant had been fully paid. This inconsistency amounts to speculation which is not the business of a court. See INVIENAGBOR vs. BRAZUAYE (1999) 9 NWLR (Pt 620) 552 at 561 paras E-F and OVERSEA CONSTRUCTION CO. LTD vs. CREEK ENTERPRISES LTD. (1985) 16 NSCC (Pt.2) 1375, (1985) 3 NWLR (Pt.113) 409. It is the contention of counsel that the law is that, he who asserts must prove. See Section 131 of the Evidence Act 2011. Also, by virtue of Section 133 (2) of the Evidence Act, the burden of proof is not static. Where a Claimant has discharged the initial burden of proving the existence of the facts alleged by him, the burden or onus of proving otherwise thereby shifts to the Defendant. See ALAO vs. KURE (2000) FWLR (Pt.6) 889; BIJOU NIG. LTD vs. OSIDARHWO (1992) 6 NWLR (Pt. 249) 643. Thus, the Defendant’s assertion that it has paid the Claimant his salary and allowances is one that has not been proven. The defendant has failed to show evidence that money was transferred to the Claimant, contrary to the argument as in paragraph 4.7 of the Defendant counsel’s final written address that the Claimant's failure to tender in evidence the Zenith Bank Plc's statement of account amounts to hiding information from the court. This is owing to the fact that it is common knowledge that Fund Transfer does not go into an account that will ground generating a statement of account. It is money transfer that only requires the Claimant filling a bank form and presenting his identity card to the bank, and he will be paid. It is counsel’s further argument that DW1 fielded by the Defendant is not a vital witness that would have helped the Court arrive at a just and equitable determination of this suit. The proper and helpful witness would have been the accountant (that pays salaries and allowances to staff of the Defendant) who did not testify. Again, Exhibit C2 which regularised the basic salary of the Claimant stated ''please, note that your Non-payroll remains the same". By this it means that apart from the basic salary and allowances as regularised, other incentives as stated in Exhibit C1 still remain. Thus, where the terms of a written contract are clear, the court should ensure there is enforcement of the contract and not to rewrite the contract for the parties. See BILANTE INT'L LTD vs. N.D.I.C (2011) 15 NWLR (Pt. 1270) p. 407. A party who knowingly executes an agreement with others and after taking advantage of its benefit with full knowledge of its contents cannot turn around to castigate its content. See OKAFOR vs. IGWITO &ORS. (1997) 1 NWLR (Pt. 527) 36. The allowances claimed by the claimant which the Defendant's counsel stated are not supported by his Employment Agreement are contained in Exhibit C1 and C2 properly made by the Defendant. The Defendant cannot unilaterally amend same through Exhibit C4 without the consent of the Claimant. The Claimant did not reply to accept Exhibit C4, the Defendant throughout the period did not discipline the Claimant for making false claim rather the Defendant continued to work with the Claimant until he renewed the request in Exhibit C6 showing that he never accepted the content of the said Exhibit C4. It is Counsel’s submission that it is settled law that a contract in writing can only be varied by an agreement in writing. In other words, where a contract is in writing, any agreement which seeks to vary the original must itself be in writing. According to Counsel, one party cannot unilaterally alter a contract or an agreement validly entered by both parties. See MARYAM vs. ZWINGINA (2000) FWLR (Pt. 72) 2096. It is therefore wrong for the Defendant to hold that the Claimant slept over his rights. The Defendant did not in any way dispute any of the said salary, allowances and incentive scheme apart from the area the Claimant made a mistake in calculation of the number of months from 5 months to 6 months. The Claimant also admitted that his quarterly claim of N30, 000.00 wardrobe allowance was supposed to be paid annually. The Defendant did not deny that the Claimant is not entitled to such payment or did not show in any way that such payment was made. However, the Claimant admitted that he is not entitled to the payment of transport allowance. In the light of the above, even if the Court removes that relief as contained in Paragraph 14 (1) c and as well bring down Paragraph 14 (1) h that erroneously claims N110,000.00 for 7 quarters and 2 months being dressing or Wardrobe allowance (from April 2008 to February 2012) for four years that is N120,000.00, the Claimant will still be entitled to the other reliefs sought. Again, it is not the case of the Defendant that the Claimant was not being owed. Rather, under cross examination; Counsel to the Defendant stated that "The Defendant stopped paying you because they discovered that you are not honest in your dealings." The Defendant did not in any way establish when they stopped paying or disciplined the Claimant for the above reason of dishonesty. DWI further confirmed to the Court that the Defendant owes the Claimant. Looking at the Defendant's copy of Exhibit C6 as frontloaded, the endorsement made by the admin manager and GMF was as follows: Admin Mgr: Please liaise with Finance and Audit to properly work out his outstanding salaries before accepting this. G-M-F PIs assist us with the staff outstanding salaries to enable us prepare resignation acceptance. According to Counsel, the said endorsement shows that the Defendant owes the Claimant. For the fact that the Defendant did not react to Exhibit C6 further shows that the Defendant admitted the outstanding amount as contained in it.See A.G NASARAWA STATE vs. A.G PLATEAU STATE (2010) 10 NWLR (Pt.1309) 419. It is also counsel’s submission that where the evidence of a witness who is called by a party supports the case of his opponent, that evidence serves as a solemn admission in favour of the opponent. See IKENI vs. EFAMO (1996) 5 NWLR (446) 64. It is also worthy of note that the Defendant did not call any evidence to rebut all the facts pleaded in the Reply to the Statement of Defence and further deposition of the Claimant. The Defendant had every opportunity if it had wanted to rebut same by calling additional witness but did not. Counsel urged the court to find and hold that admitted facts need no further proof See UDE vs. A.G RIVERS STATE (2002) 4 NWLR (Pt. 756) 66, DAGGASH v. BULAMA (2004) 14 NWLR (892) 144. It is counsel’s final submission that the Claimant has succeeded in proving his case on the balance of probability which is required of him in a civil action. Counsel urged the Court to find and hold that the Defendant did not, in any way deny that the claimant is not being owed and that the Claimant proved his case. In the Defendant’s counsel Reply on Points of Law, counsel in reaction to the Claimant’s counsel’s argument in paragraph 4.1 of his address that Exhibits Dl, D2, D3, D4, D5, D6 and D7 are not admissible in law; submitted that the argument is erroneous. This arises from the fact that a communal reading of Sections 85, 86, 87, 88, 89, 90 and 91 of the Evidence Act 2011 show that these exhibits meet every requirement of the law. The said exhibits were pleaded in the Statement of Defence. More so, the Supreme Court have enjoined the courts in MCC vs. AZUBUIKE (1990) 3 NWLR (pt. 136) 74 to scrutinize the entire pleadings to see if the contents is pleaded by implication. Also responding to the claimant's counsel submission that the Defendant did not give the claimant any notice to produce any document; Counsel submittedthat by virtue of Section 89 (a) (i) of the Evidence Act 2011, secondary evidence is admissible if the original (primary) evidence appears to be with the person against whom the document is sought to be proved. Again, by Section 91 (b) of the same Evidence Act, Notice shall be dispensed with if the adverse party knows that he will be required to produce them. In the instant case, the Claimant is aware that the Defendant frontloaded copies of these Exhibits and that he should produce the originals especially as he has made same request of the defendant. Furthermore, counsel submitted that the authority of AROMOLARAN vs. AGORO (2015) All FWLR (Pt. 766) 574 relied upon by the learned claimant's counsel does not apply as the facts are not same with the extant case. The case of AROMOLARAN supra deals with the admissibility of public documents while the instant case deals with private documents. Hence, in OYENEYIN vs. AKINKUGBE (2010) 4 NWLR (Pt. 1184) 265 @ 286 the court stated as follows: "Cases are not cited at large. The facts of the case must he similar, whereas, generally speaking, cases are decided on their peculiar circumstances or facts. Citing cases that are inapplicable ... leads to grave misconception and, ultimately, miscarriage of justice. Embarking upon an exercise of comparing and distinguishing an irrelevant case amounts to an unproductive academic exercise, which the courts must shun in the furtherance of development of law". From the above submissions, counsel urged the Court to admit the documents in evidence and use same in the final determination of this case. Regarding the Exhibits, counsel submitted that he withdrew his objection because it is relevant to the case though it possesses technical flaws. In reaction To the Claimant’s counsel’s second issue for determination, to the effect that the Defendant failed to prove that he has paid the Claimant, it is counsel’s submission that Sections 131(1), 132 and 133(1) of the Evidence Act have resolved this to the effect that the onus lies on the Claimant to prove his case. Furthermore, in paragraph 5.23 the Claimant's counsel argued that funds transfer does not go into an account of the receiver. Counsel submitted that funds transfer involves bank accounts and therefore are reflected on Statements of Accounts. It is counsel’s contention that the Claimant must succeed on the strength of his case and not on the weakness of the Defence's case. See JOVINCO NIG. LTD. & ANOR. vs. IBEOZIMAKO (2014) LPELR-23599 (CA). Counsel urged the Court to dismiss this action as the Claimant has failed to prove his entitlement to the reliefs sought. Court’s Decision Having gone through the facts of this case and having also reviewed the submission of counsels in their final written address, the issue in this case appears to be quite a simple one. The issue is simply to determine whether the defendant is indebted to the claimant with regards to the claimant’s salaries and allowances and if found to be so, what the amount of the indebtedness is? In his evidence, the Claimant stated that he was employed by the Defendant on 9th July 2008 vide Exhibit C1 as Station Head of the defendant’s Owerri Branch Office. He said that the letter contained the terms and conditions of his employment. The claimant further testified that his monthly basic salary and allowances were regularized by the Defendant in a letter dated 28th day of November 2008, that is Exhibit C2. By virtue of the regularization, his total monthly salary and allowance was the sum of N25,000 broken down as follow: Basic salary- N7,500; Housing allowance- N5,400; Transport allowance- N5,400; Dressing subsidy- N3,600; and Housekeeping allowance-N3,600. He said that Exhibit C2 also made provision for monthly medical allowance in the sum of N4,500 and non payroll which remain the same as contained in the employment letter. The Claimant went on to state that the Defendant was not paying the salary to him regularly such that there are several months arrears of salary left unpaid. He wrote Exhibit C3 dated 28th April 2010 to the Defendant to request payment of his outstanding salaries and allowances but the Defendant, in its reply dated 17th May 2010, assured the Claimant that the management was taking steps to address the issue. Several months after, and upon several demands by him, the Defendant refused to settle the arrears of salary. As a result, on 20th January 2012, he conveyed his intention and one month notice to resign his employment to the Defendant through Exhibit C5. He left the Defendant’s employment on 25th February 2012 but he was not paid his outstanding salaries and allowances up to 21st October 2013 when he caused his solicitors to make a demand to the Defendant for same. His solicitors letter, Exhibit C6, was not replied by the Defendant but the Defendant’s Head of Human Resources phoned the Claimant and promised to send to the claimant a cheque of the sum owed to him before 31st December 2013. The Claimant said he never received the payment. It is the Claimant’s evidence that the sum owed to him is a total of N1,977,900.00 which sum came about as follows: i. 27 months basic salary (December 2009 to February 2012) at N7,500.00 per month = N202,500.00. ii. 27 months housing allowance (December 2009 to February 2012) at N5,400.00 per month= Nl45,800.00. iii. 27 months transport allowance (December 2009 to February 2012) at N5,400.00 per month= Nl45,800.00. iv. 27 months dressing Subsidy (December 2009 to February 2012) at N3,600.00 per month = N97,200.00. v. 27 months housekeeping allowance (December 2009 to February 2012) at N3,600.00 per month= N97,200.00. vi. 27 months medical allowance (December 2009 to February 2012) at N4,500.00 per month = N121,500.00. vii. 44 months vehicle maintenance allowance (July 2008 to February 2012) at N8,000 per month= N352,000.00. viii. Quarterly dressing or Wardrobe allowance (April 2010 to February 2012) that is 7 quarters, and 2 months = N110,000.00. ix. 5 years leave allowance at N8,060.00 = N40,300.00. x. 128 weeks fuel allowance (from 14 January 2010 to February 25, 2012) at N4,200 per week = N537,600.00. xi. 128 weeks airtime allowance (from 14 January 2010 to February 25, 2012) at Nl,000 per week= N128,000.00. In his additional evidence, the Claimant stated that he was not paid his basic salary and all his entitlements in line with Exhibit C2. That initially, the Defendant paid his salary and allowances through funds transfer to Zenith Bank. Only four payments were made through that process before the Defendant directed him to open a salary account with Skye Bank. Since opening the account, his salaries and allowances have been paid into the account. A copy of the Claimant’s statement of account was admitted in evidence as Exhibit C7. In the evidence of the Defendant’s witness, Kufre Ekpo, the fact that the Claimant was employed by the Defendant through Exhibit C1 and the regularization of the Claimant’s salary vide Exhibit C2 were admitted. The witness stated however that the Claimant was duly and constantly paid his salaries and entitlements as contained in Exhibit C2. DW1 stated that the Defendant received and replied the Claimant’s demand letter dated 28th April 2010. In the Defendant’s reply dated 27th May 2010, the Defendant “clearly stated the financial situation that it was experiencing and rebutted some of the Claimant’s claim.” The witness went on to talk about the Defendant’s financial difficulties, how it was occasioned by the Defendant’s staff and that the Claimant was suspected to be involved by reason of his negligent and lukewarm attitude to work. That at the time the Claimant wrote his letter of 28th April 2010, the Defendant was only indebted to him for a few months salary and the reason for non-payment of the Claimant’s salary at the time was that he failed to make any returns to the Defendant. The summary of all other evidence given by the witness is that the Defendant is not indebted to the Claimant to the tune of the sum claimed by him. See paragraphs 10, 17, 25 and 27 of his evidence. It is not in dispute in this case that the Claimant was an employee of the Defendant and that one of the terms of the contract between the Claimant and the Defendant was the payment of salaries and allowances to the Claimant. At the time of the employment contract, it was agreed that the Claimant will be paid some amount as monthly salary and allowances. This agreement is contained in Exhibit C1 where the entitlements of the Claimant were clearly spelt out. The monthly entitlements and other allowances which the Claimant was entitled to be paid as stated in Exhibit C1 are as follows- basic salary – N6,250; housing allowance- N4,500; Transport allowances – N4,500; dressing subsidy- N3,000; housekeeping allowance- N3,000; medical allowance- N3,750 monthly. Other entitlements prescribed in Exhibit C1 are- a car or monthly payment of N8, 333 in lieu of car; fuel allowance of 240 liters per month; vehicle maintenance of N8000 per month; GSM airtime of N4000; dressing or wardrobe allowance of N30,000 payable quarterly and leave allowance of 10% of annual basic salary. In Exhibit C2, the Claimant was informed his salary has been regularized in the following order- Basic salary- N7,500; Housing allowance- N5,400; Transport allowance- N5,400; Dressing subsidy- N3,600; Housekeeping allowance- N3,600 and medical allowance – N4,500 to be paid with monthly salary. It is stated in the Exhibit that the non payroll remain the same. Exhibit C2 contained the regularized salary and allowances of the claimant and the claimant, having testified that his current salary was as stated in Exhibit C2, also based his claims on the content of Exhibit C2. That is to say by the contract, the Claimant was entitled to be paid the salaries and allowances contained in Exhibit C2 from the date of the Exhibit being November 2008. Was the Claimant paid the agreed salaries and allowances up to date? It is the Claimant’s case that the payment of the monthly salaries and allowances were not regular such that there are several months salaries and allowances now in arrears and unpaid. In order to establish the fact of the irregular payment of his salaries and allowances, the Claimant tendered the statement of his salary account in evidence. The Claimant explained that his salaries were initially being paid through funds transfer to Zenith Bank but after four payments, he opened a salary account in Skye Bank as directed by the Defendant. He stated that his salaries and allowances have since then been paid into the account. The Claimant’s statement of account, Exhibit C7, shows an opening date of 31st December 2009 and it is observed therein that payments of Salary and Allowances were made to the claimant on 09-02-2010, 12-08- 2010, 21-09-2010, 10-11-2010, 26-01-2011, 01-04-2011, 28-06-2011 and 28-11-2011. A scrutiny of the account reveals that between the opening date of the account and the month of February 2012 when the claimant resigned from the employment, the Claimant was paid for only 8 months. The Claimant was not paid salaries for all the other months. The Defendant was very inconsistent in its defence to the Claimant’s claim. In one breath, it asserted in paragraph 9 of the Statement of Defence that “the claimant was at all material time duly paid his basic salary and all entitlements as contained in the salary regularization letter dated 28th day of November 2008 and same was constantly paid in time” and in Paragraph 16 thereof, it further asserted that it had consistently and duly paid the Claimant all his basic salary and all his entitlements as agreed by the parties. In another breath, the Defendant stated in paragraphs 24 and 26 of the Statement of Defence that it is not indebted to the Claimant to the tune of the sum claimed by him. DW1’s evidence-in-chief went along these lines also. The Defendant appears to say in the first instance that it is not indebted to the Claimant while in the second instance, it appears to be telling the Claimant that “although I owe you, but not up to the sum you claim”. The questions now arising from the Defendant’s contentions are: Has the defendant been able to show that the Claimant has been paid all his salaries and allowances up to the date of resignation? If the Claimant is claiming more than the Defendant owed, did the Defendant clarify the amount it has paid to the Claimant from his claim, and what is outstanding? When the Claimant alleged that the Defendant owes him arrears of salaries and allowances and also substantiated the allegation with the account statement of his salary account, the burden shifts to the Defendant to disprove the Claimant’s claims by tendering evidence of consistent and complete payment to the Claimant of the salaries and allowances claimed by the Claimant in this suit. Besides the mere statement of DW1 that the Defendant has duly paid to the Claimant his salaries and allowances, he offered no substantial evidence of the payments to the Claimant. Under cross examination, DW1 stated that “the defendant is owing the claimant.” He further gave the following evidence: “At the end of every month, the accountant prepares the payroll for all the staff both in Lagos and outstation. The MD approves the payroll and the staff various accounts are credited with the amount due to them. I did not have the opportunity of seeing the payroll containing the Claimant’s name from the time he was employed until the time he resigned.” DW1 also admitted under cross examination that there is a record of payments of salary to the Claimant but he does not have such record in court. It appears to me, from these facts elicited from DW1, that he does not have a firsthand knowledge of the facts he testified to. He merely appended his signature to the deposition without an understanding of the facts contained therein. The long and short of the evidence adduced by the Defendant is that it has not been able to substantiate its allegation that it has paid the Claimant all his salaries and allowances. With respect to the Defendant’s contention that it is not owing the Claimant to the tune claimed by him, while I view that as an admission of indebtedness to the Claimant, I observed that the Defendant has not told this court what it has paid to the Claimant so far as salaries and allowances and what is supposed to be left. The Defendant has thus left the Claimant’s case with a lot of credibility. DW1 did state under cross examination that the Defendant is indebted to the Claimant. The result is that I find that the Claimant has proved that some of his monthly salaries and allowances are outstanding. Having come to so find, I will proceed to examine the 2nd leg of the issue under consideration in this judgment, which is, to determine the actual salary and allowances outstanding to be paid to the Claimant. The Claimant’s resignation took effect from 20th February 2012. He is entitled to claim for arrears of his salary and allowances due to him up to the time he left the employment. The total salaries and allowances claimed by him is N1,977,900.00. According to the Claimant, the sum comprises of the items listed under relief 1 of his claim. Items (a) to (f) of relief 1 are claims for unpaid monthly basis salary, housing allowance, transport allowance, dressing subsidy, housekeeping allowance and medical allowance. It is stated in items (a) to (f) of relief 1 that the sums claimed in the items are for the period of December 2009 to February 2012 representing the Claimant’s unpaid monthly salaries and allowances for the said months. The Exhibit C2 contains the Claimant’s entitlements. The items constituting salaries and allowances therein, although have been set out earlier in this judgment, I shall repeat them at this point to be used as guide in the computation that will follow shortly. They are- Basic salary- N7,500; Housing allowance- N5,400; Transport allowance- N5,400; Dressing subsidy- N3,600; Housekeeping allowance- N3,600 and medical allowance – N4,500. In his claim for basic salary, housing allowance, transport allowance, dressing allowance, housekeeping and medical allowance, the Claimant seeks payment for 27 months counting from December 2009 to February 2012. But within these periods of his claim, Exhibit C7 shows that he had been paid for the months of February 2010, August 2010, September 2010, November 2010, January 2011, April 2011, June 2011 and November 2011. Having been paid for 8 months out of the 27 months, it means only 19 months is outstanding. The amount outstanding for the 19 months will be as follows- i. Basic salary -19 x 7,500 = N142,500 ii. Housing allowance -19 x 5,400 = N102,600 iii. Transport allowance –19 x 5,400= N102,600 iv. Dressing subsidy –19 x 3,600 = N68,400 v. Housekeeping allowance - 19 x 3,600 = N68,400 vi. Medical allowance - 19 x 4,500 = N85,500 Total = N570,000 I find that the total outstanding monthly salaries/allowances due to the claimant between the period December 2009 to February 2012 is the sum of N570,000.00. Items g, h, I, j and k of relief 1 are claims for vehicle maintenance allowance, quarterly dressing or wardrobe allowance, leave allowance, fuel allowance and airtime allowance. Whether the Claimant is entitled to these claims will depend on the agreement of the parties or terms of the contract as contained in the claimant’s employment documents. Exhibit C2, which the Claimant said contained his entitlements, did not contain any items of payment for vehicle maintenance allowance, quarterly dressing or wardrobe allowance, leave allowance, fuel allowance and airtime allowance. It contains however that “non-payroll remains the same”. What is the non-payroll under the employment contract which is stated to remain the same in Exhibit C2? This question is necessary at this point because the word “non-payroll” as used in Exhibit C2 generated varied interpretations from the counsels to the parties in their final written addresses. The Defendant’s counsel submitted that the Claimant's non-payroll is his leave allowance which is 10% of his Annual Basic salary and paid only once a year. Counsel did not however explain the basis for his view. The Claimant’s counsel, on the other hand, submitted that the statement “non-payroll” in Exhibit C2 means the other incentives as stated in Exhibit C1. When detailing the Claimant’s entitlements in Exhibit C2, it was written in it that the non-payroll remains the same. From the phrase, it is clear that the Claimant’s non-payroll had been set out in a previous document. Therefore, in order to determine the items which constitute non-payroll which the Claimant is entitled to by virtue of Exhibit C2, there is need to revert to the previous documents containing the Claimant’s entitlements. The only other such document is Exhibit C1. Apart from monthly salary and allowances, it must be asked if there other payments contained in Exhibit C1 which were meant to remain the same in Exhibit C2? The other payments in Exhibit C1 are the incentives and leave allowance. The items of incentives in Exhibit C1 are: a car or monthly payment in lieu of car, fuel allowance, vehicle maintenance, GSM airtime and dressing or wardrobe allowance. The leave allowance payable is 10% of annual basic salary. I do observe that these payments are different from monthly salary and allowances. They are not paid with monthly salary and some are not even monthly payments. There is no doubt that these are the non-payroll. I agree with the Claimant’s counsel on the point that the incentives in Exhibit C1 are the non-payroll. I hold that by Exhibit C2, the Claimant is also entitled to be paid the items under the non payroll as contained in Exhibit C1. The non-payroll which the Claimant is entitled to are stated in Exhibit C1 to be the following- i. A car or monthly payment of N8,333 in lieu of car, ii. Fuel allowance of 240 liters per month, iii. Vehicle maintenance of N8000 per month, iv. GSM airtime of N4000, v. Dressing or wardrobe allowance of N30,000 payable quarterly, vi. Leave allowance of 10% of annual basic salary. The Claimant’s claims under the non payroll are- a. 44 months vehicle maintenance allowance (July 2008 to February 2012) at N8,000 per month= N352,000. b. 7 quarters, and 2 months dressing or Wardrobe allowance (April 2010 to February 2012) = N110,000. c. 5 years leave allowance at N8,060.00 = N40,300. d. 128 weeks fuel allowance (14 January 2010 to February 25, 2012) at N4,200 per week = N537,600. e. 128 weeks airtime allowance (from 14 January 2010 to February 25, 2012) at Nl,000 per week = N128,000. The Claimant was entitled under the contract to be paid the non-payroll and it is his case that he has not been paid for the periods he stated in items g, h, i, j and k of the claim. As have already been observed in this judgment, the Defendant did not offer any proof of payment to the Claimant of the various items of his claim. As it stands, there is nothing standing in the way of granting the Claimant’s claims for the non-payroll. The Claimant’s claim for 44 months vehicle maintenance allowance (July 2008 to February 2012) at N8,000 per month, amounting to N352,000.00 is hereby granted. I have observed however, that there some irregularities in the sums claimed under the other items of non-payroll. In the item for dressing or wardrobe allowance, the Claimant claims from April 2010 to February 2012 and he said there are 7 quarters and 2 months in this period. I think not. Between April 2010 and February 2012 are 5 quarters and 2 months. Since the two months have not formed a quarter, the Claimant cannot be entitled to the allowance for that period. This means he is entitled to dressing allowance for 5 quarters only. The amount payable every quarter for dressing or wardrobe allowance is N30,000. The total due for 5 quarters is N150,000.00. The Claimant claims for the sum of N40,300 as 5 years leave allowance. He based his calculation on N8,060 per year. Leave allowance is supposed to be 10% of annual basic salary. The Claimant’s monthly basic salary in Exhibit C2 is N7,500. This adds up annually to the sum of N90,000. 10% of this sum is N9000. Multiplied by 5 years will give N45,000.00 as the Claimant’s leave allowance for the 5 years not paid for. The Claimant is entitled to fuel allowance of 240 liters per month. The claimant has now converted it into monetary value when he claims the sum of N4,200 per week in item j. First of all, the fuel allowance is a monthly entitlement not weekly. Secondly, the Claimant did not explain how a monthly 240 liters of fuel translated to N4,200 weekly sum. There is nothing in Exhibit C1 or C2 that requires money to be paid in lieu of the fuel or was any amount put on each liter of fuel as to enable monetary value to be placed on the 240 liters of fuel. I find curious the sum claimed in this item. In the absence of evidence of how it was arrived at or the basis for the amount claimed, I cannot give any order for the payment of the item. The Claimant has also claimed for airtime allowance for 128 weeks beginning from 14th January 2010 to 25th February 2012 at N1,000 per week. The airtime allowance in Exhibit C1 is N4000 but it is not stated whether it is weekly, monthly or yearly payment. If considered with other items of incentives in Exhibit C1 however, it will appear the airtime amount was meant to be a monthly payment. From the evidence of the Claimant, he resigned from the Defendant’s employment effective 20th February 2012. From 14th January 2010 to 20th February 2012 is a period of 25 calendar months. The airtime allowance for these months is the sum of N100,000.00 and not the N128,000 claimed by the Claimant based on weekly calculation. Other than item j of relief 1 which will be refused, the Claimant is entitled to be paid his actual entitlements as re-calculated in this judgment. In view of the foregoing, the sum total of the items of non-payroll is the sum of N647,000.00 made up of N352,000.00 being 44 months vehicle maintenance allowance (July 2008 to February 2012) at N8,000 per month, N150,000.00 being the total amount due and payable to the Claimant as dressing allowance for 5 quarters at N30,000 per quarter, N45,000.00 being the total amount due and payable to the Claimant as leave allowance for the 5 years not paid for, and N100,000.00 being airtime allowance from 14th January 2010 to 20th February 2012, a period of 25 calendar months at N4000 per month. As earlier held in this judgment, the total outstanding monthly salaries/allowances due to the claimant between the period December 2009 to February 2012 is the sum of N570,000.00. Consequently, the total sum outstanding to the Claimant from both the monthly salaries and allowances and the non-payroll is the sum of N1,217,000.00. The Defendant’s counsel has argued that because the Claimant was unable to establish the exact sum claimed by him, his claim should fail. The mind of this court does not work like that of the Defendant’s counsel. The statute establishing this court has given power to this court to grant all such remedies which any of the parties thereto may be entitled in respect of any claim brought before the Court so that all matters in dispute between the parties may be completely and finally determined. In view of this provision, this court will normally award to any party what the party is entitled from the claims even if all the claims are not fully established. Therefore, the amount which is discovered in this judgment to be due to the Claimant will be awarded to him notwithstanding that the sum is less than he had sought. In the final analysis, I hold that the Claimant’s claim succeeds. The Defendant is ordered to pay to the Claimant the sum of N1,217,000.00. The claim for pre-judgment interest is refused. However, this court, in line with the provision of Order 21 Rule 4 of the NIC Rules, 2007 imposes a 10% annual interest on the judgment sum if not paid to the Claimant within 30 days from today. For the avoidance of doubt, it is hereby ordered as follows: The Defendant is hereby ordered to pay to the Claimant the sum of N1,217,000.00 broken down as follows: 1. The sum of N570,000.00 being the total outstanding monthly salaries/allowances due to the Claimant between the period December 2009 to February 2012. 2. The sum of N352,000.00 being 44 months vehicle maintenance allowance (July 2008 to February 2012) at N8,000 per month. 3. The sum of N150,000.00 being the total amount due and payable to the Claimant as dressing allowance for 5 quarters. (At N30,000 per quarter). 4. The sum of N45,000.00 being the total amount due and payable to the Claimant as leave allowance for the 5 years not paid for. 5. The sum of N100,000.00 being airtime allowance from 14th January 2010 to 20th February 2012, a period of 25 calendar months (At N4000 per month). 6. The sums awarded above shall be paid to the Claimant within 30 days from the date of this judgment being the 9th day of March 2016, failure of which it shall begin to attract an interest of 10% per annum until it is finally liquidated. No order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge